I recently discovered that one of my children isn’t mine biologically. I feel cheated, and I am still thinking of my next move regarding this marriage. I want to ask my wife to disclose the name of the man responsible so he can pay for the upkeep of the child. How do I get her to reveal her lover?
It is not in the purview of this column how you discovered the biological disconnection of one among your children. However, you seem geared to use this to decide the fate of your marriage.
Marriage, if it has been established by the Marriage Act Section 3 Clause 1, is a voluntary union of man and woman in a monogamous or polygamous union registered under the Act. Therefore, it has legal parameters on which it can be dissolved.
It is important to point out that the family holds a central social and human development position, as articulated in Article 45 Clause 1 of the Constitution. It is affirmed as the natural and fundamental unit of society and the necessary basis of social order and enjoys the recognition and protection of the state.
The Marriage Act provides two general approaches when parties seek divorce. Sections 64, 66 (4), and 68 direct the court to send parties to first subject their dispute to mediation and conciliatory processes. The legal expectation is that such disputes are settled, and the marriage survives.
However, the law is also aware that sometimes disputes can be so raw to reduce the presence and flow of sober conversations between husband and wife, thus allowing for recourse in court.
Save for divorce proceedings that are subjected to the Islamic tenets, the commonly cited reasons for dissolving marriages as provided for in Sections 12 (a), 65, 66, 69, and 70, for Christian, civil, customary, and Hindu, include a) incapability by either party to consummate the union: b) one or more acts of adultery by the non-petitioning party: c) physical or mental that has been inflicted by the non-petitioning party on the petitioner, or children, if any of the marriage; d) desertion by either party for at least three years, immediately preceding the date of presentation of the petition: e) a marriage where exceptional depravity by either party is noted: and f) a marriage that is considered to have irretrievably breakdown.
The Hindu faith adds a marriage where the other party has converted to another religion. Similarly, the other party has committed rape, sodomy and bestiality.
The other issue you have raised is whether it is possible to compel your wife to reveal the identity of the person who fathered the child doubted to be yours. Although Article 35 (1b) of the Constitution allows you to access information held by another person, it can only be required to exercise or protect your right or fundamental freedom.
Secondly, your wife has a right to privacy, as espoused in Article 31 (c), which includes the right to information relating to her family or private affairs unnecessarily required or revealed.
As an individual, you have no powers to cause such compulsion, and this may only be awarded by a court of law and only when the merits presented before it justifies.
Will the actions you propose amount to the best interest of the child in question? Section 8 of the Children's Act, in pursuance to intentions of Article 53 (2) of the Constitution, commands that all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, or legislative bodies, must reside and be motivated by the best interest of the child.
The First Schedule of the Children's Act provides 18 parameters that define the child's best interest principle. Four that need to be highlighted are as follows: a) the age, maturity, stage of development, gender, background, and any other relevant characteristic of the child: b) the relationship of the child with the child's parent(s) and/or guardian(s) and any other persons who may significantly affect the child's welfare: c) the child's preference, if old enough to express a meaningful preference: and d) the parties' motivation and capacities to give the child love, affection, and guidance.
Given the circumstances, and mainly because you have declared this not to be a friendly conversation, you need to find legal counsel. Many lawyers in the market can deal with this matter. Should you need guidance on specialised lawyers, a visit to the branch office of the Law Society of Kenya is necessary.
